The Protected Disclosures Act 2022

The Protected Disclosures (Protection of Whistleblowers) Act 2022 (the Act) facilitates the disclosure and investigation of serious wrongdoing in the workplace. It provides protection for employees and other workers who report concerns in good faith, helping ensure that serious issues can be raised, assessed and addressed through appropriate processes without fear of retaliation.

Protected disclosures

An employee or former employee makes a protected disclosure (sometimes called whistleblowing) when they report serious wrongdoing that they believe on reasonable grounds is, or has been, occurring in their workplace.

The Act provides protection for these employees from criminal and legal retribution and outlines the internal procedure to be followed when investigating the matter. Employees who report information or activities that are deemed illegal or incorrect in a workplace are often referred to as ‘whistle-blowers’. The Act applies to the public and private sector across New Zealand.

What is defined as serious wrongdoing?

Serious wrongdoing includes any unlawful activity, gross negligence by public officials, criminal offences or conduct that could potentially pose a risk to the public on a broader scale. It should not be confused with serious misconduct, which only affects an individual or group of people in the organisation.

The Act describes the following as serious wrongdoing:

• unlawful, corrupt or irregular use of public money or resources
• conduct that poses a serious risk to public health, safety and the environment
• conduct that increases the risk of unauthorized intervention from a third-party to encourage a lawsuit
• any kind of criminal offence
• gross mismanagement and negligence from public officials.

Who can make protected disclosures?

The Act defines ‘employees’ as:

• current employees who receive a regular wage or salary
• former employees of the organisation
• individual contractors who work for the organisation
• homeworkers
• secondary parties involved in managing the organisation
• volunteers who work for the organisation
• board members
• people seconded to the organisation.

For the disclosure to be protected, the following requirements under the Act must be met:

• the information must be about serious wrongdoing in the workplace
• the employee must have a good reason to believe the information is true or likely to be true
• the employee wants the serious wrongdoing to be investigated and is willing to cooperate

If the employee knows the allegations are false, acts in bad faith or the information is protected by legal professional privilege; the disclosure will not be protected.

Writing a protected disclosure policy

Public organisations are required by law to have their own internal procedures.

Private organisations are not legally required to have a protected disclosure policy. Although, having a policy does show transparency within the organisation and may give employees the comfort of knowing they can express their concerns without fear of retribution.

How to submit protected disclosures

Employees should follow the internal procedure in the company handbook to report any cases of serious wrongdoing.

If the organisation does not have a protected disclosure policy and the person that manages the disclosures is the one being accused of serious wrongdoing, an employee can disclose the information to the head of the organisation.

If there is good reason to believe the employer or disclosure manager is involved in serious wrongdoing, the employee may report to the appropriate authorities to have the matter investigated. Authorities can include, but are not limited to:

• Ombudsman
• Commissioner of Police
• Controller and Auditor-General
• Parliamentary Commissioner for the Environment
• Independent Police Conduct Authority
• Inspector-General of Intelligence and Security
• Director of the Serious Fraud Office
• Solicitor-General
• Health and Disability Commissioner, or
• The Head of relevant private sector professional bodies that can discipline their members, such as the Law Society

The disclosure won't be protected if:

• the employee knows the allegations are false
• the employee acts in bad faith
• the information the employee is disclosing is subject to legal professional privilege

What protection does the Act offer?

Many employees are afraid to disclose information about serious wrongdoing because they are afraid of losing their job, being sued by the company or discriminated against. The Act clearly states that no civil, criminal or disciplinary action can be taken against whistle blowers or potential whistle blowers for making a protected disclosure.

If an employee does face any form of retaliation from the organisation, they can submit a personal grievance claim under the Employment Relations Act. Employers who discriminate or mistreat employees that have disclosed information about serious wrongdoing could face serious legal consequences.

How does the Act protect an employee’s privacy?

After making a protected disclosure, an employee’s personal information is kept confidential according to the terms of the Act unless the employee consents to the disclosure.

There are exceptions to the confidentiality rule in the Act, which means certain information can be used if it:

• helps the investigation move forward and uncover the truth behind the allegations
• reduces the risk of personal injury or harm to public health, safety and the environment
• avoids potential bias and complies with the rules of natural justice

Impact on businesses

If your business or organisation receives a protected disclosure, it is important to respond promptly, carefully and in line with the Act. The guide below sets out the key steps and considerations for employers.

A protected disclosure can have several impacts on a business legally, operationally and culturally. The following are some steps you should consider:

Step 1: Acknowledge the disclosure - Acknowledge that the disclosure has been received and make sure the person understands that the matter will be handled appropriately. Employers should also consider whether immediate steps are needed to protect the person making the disclosure or to manage any urgent risk

Step 2: Assess whether the disclosure is protected - Consider whether the information relates to serious wrongdoing and whether the disclosure appears to meet the requirements under the Act. This assessment will help determine the appropriate response and whether the matter should be investigated, referred to an appropriate authority, or otherwise addressed.

Step 3: Protect confidentiality and prevent retaliation - Take reasonable steps to keep the discloser’s identity confidential, unless an exception applies or disclosure is necessary under the Act. Managers should also ensure the person is not disadvantaged, victimised, disciplined or otherwise treated unfairly because they made a protected disclosure.

Step 4: Decide whether an investigation is required - Consider the nature of the concerns raised, the available information, and any immediate risks to people, property, public funds, the environment or the organisation. If an investigation is required, plan the process carefully, keep records, and ensure the investigation is fair, objective and proportionate.

Policy and Procedure Reviews

1. Policy Development: While private organisations are not legally required to have whistleblowing policies, implementing a policy can enhance transparency and demonstrate a commitment to addressing concerns.

2. Training Needs: Businesses may need to provide training to ensure employees and managers understand whistleblowing processes, protections, and their roles in fostering a supportive environment.

Financial Impact

1. Investigation Costs: Investigating disclosures may incur costs for hiring experts, legal advice, or implementing corrective measures.

2. Potential Legal Claims: Mishandling protected disclosures can lead to financial penalties, compensation claims, or expensive legal disputes.

By responding promptly and appropriately to protected disclosures, businesses can mitigate risks, enhance compliance, and promote a positive workplace culture.

This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.